IA175952013

The Appellant is a national of Sri Lanka, born on 13 th May 1977. He arrived in the United Kingdom on 4 th January 2006, with entry clearance as a student valid to 2 nd February 2007. His leave was then extended to 31 st October 2010 and on 13 th December 2010 he was granted further leave as a Tier 4 (General) student to 25 th April 2011. On 4 th April 2011, he was granted leave to remain as a Tier 1 (Post Study) Migrant. On 22 nd March 2013, the Appellant applied for further leave to remain as Tier 4 (General) Student.

The Appellant sought permission to appeal on the basis inter alia that the Judge erred in her construction of "degree level study" at [18] of her decision as "degree level study" is at Level 6 or above and any study below Level 6 should not count towards the 5 year period and even if that is wrong, the second period of April 2008 to January 2009 was pre-sessional and did not lead to a degree, so should also not count towards the 5 year period.

Upon renewed application to the Upper Tribunal, permission to appeal was granted by Upper Tribunal Judge McGinty on 13 th May 2015, on the basis that it was arguable that the Judge erred in law in finding that the pre-sessional studies carried out by the Appellant at MERC Education, prior to the commencement of the BA Hons in Business Administration, were study at degree level and should be counted for the purposes of paragraph 245ZX(ha) of the Immigration Rules.

In a rule 24 response dated 27 th May 2015, the Respondent opposed the appeal on the basis that the Judge's conclusions were open to her.

I reserved my decision. Having had the opportunity to hear submissions from both parties and to consider further the decision of the Upper Tribunal in Islam ( op cit ) I find that First Tier Tribunal Judge Canavan erred materially in law in that her decision neither referred to nor took into account the decision of the Upper Tribunal in Islam as to the correct test to be applied.